No taxation without authorization

This week, my Goldwater Institute colleague Naomi Lopez Bauman and I published an article in National Review Online about a disturbing trend of governors flouting the rule of law in order to impose Medicaid expansion under the Affordable Care Act in their states.

In 2012, the Supreme Court ruled that Washington cannot force states to expand their Medicaid programs. Because federal law seeks to fundamentally transform Medicaid from a safety net for the poor into what Chief Justice John Roberts described as “an element of a comprehensive national plan to provide universal health insurance coverage,” this ruling empowered states to reduce government spending by hundreds of billions of dollars and halt a critical component of the federal takeover of the healthcare industry.

Yet governors across the country are employing drastic measures to expand Medicaid, often bypassing state legislatures and ditching constitutional constraints on their power.

In July, Alaska Governor Bill Walker announced his plan to expand Medicaid despite the legislature’s firm rejection. In response, a joint committee of the Alaska legislature filed a lawsuit to defend the legislature’s sole authority to make laws, as enshrined in Alaska’s Constitution.

Arizona legislators (represented by the Goldwater Institute) brought a similar challenge against former Governor Jan Brewer for ignoring the state’s voter-enacted constitutional protection requiring two-thirds of the legislature to approve “an act that provides for a net increase in state revenues.” Eleven other state constitutions have similar protections.

Governor Brewer’s Medicaid expansion plan called for charging a provider tax on hospitals. Yet Medicaid expansion—and the provider tax that funds it—received little more than a simple majority in both houses, falling short of the constitutionally required two-thirds supermajority to approve a new tax. Despite this deficiency, the Governor signed the taxing authority over to the state’s Medicaid director, sticking Arizonans with an unconstitutional tax.

Ignoring restrictions on the taxing power and yielding control to independent officials eviscerates checks and balances, inviting uncertainty and paving the way for special interest groups to hijack the lawmaking process. Legislators are beholden to their constituents. Bureaucrats have no such accountability.

Medicaid expansion proponents lament that subjecting the provider tax to the supermajority requirements makes expansion unfeasible in states like Arizona, but it is precisely when contemplating politically and emotionally charged issues such as this one that state constitutional protections are needed most.

As federal spending spirals out of control, state constitutions protect the people from taxation without authorization. Unfortunately, some state governors have forsaken these protections to foist upon their citizens an expensive and unworkable federal program. There are ways to extend health insurance coverage without violating state laws, but unfortunately these governors are doing so through unconstitutional means that will set a disastrous future precedent.

The Goldwater Institute’s lawsuit Biggs v. Betlach seeks to preserve the democratic protections enshrined in Arizona’s Constitution. If courts fail to enforce these state constitutional protections, there will be nothing to shield the people from Washington-style government abuse.